Sharing Documents with Litigation Funders under the Texas Work Product Doctrine

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A necessary aspect in obtaining alternative litigation financing is sharing documents that may have been prepared by your attorney with a third party funder.  Before you share your attorney’s work product, or those documents that have been prepared pending a lawsuit, remember to sign a Non-Disclosure Agreement (“NDA”) with the funder.  At a minimum, this executed document displays your intent to protect the confidentiality of those documents.

As discussed in previous posts, the cloak of the Work Product Doctrine varies by jurisdiction.  In Texas, the Work Product Doctrine greatly mirrors that of the federal Work Product Doctrine in that it categorizes work product as those materials, mental impressions, and communications developed in anticipation of litigation or for trial between or among a party and the parties’ representatives.  (Texas Rule of Civil Procedure [Tex. R. Civ. P.”], Rule 192.5(a).) 

Also in line with the federal Work Product Doctrine, Tex. R. Civ. P. 192.5(b)(1) provides absolute protection to “opinion work product” (i.e., an attorney’s opinions and mental impressions); (b)(2) affords limited protection to non-opinion work product and allows discovery of non-opinion work product upon a showing of need and hardship; and (b)(4) warns courts to protect opinion work product if ordering non-opinion work product to be produced to your opponent.

However, the distinction in Texas from the federal guidelines is seen in Tex. R. Civ. P. 192.5(b)(3), where a higher level of protection is afforded to a lawyer’s opinion work product.  Specifically, (b)(3) acknowledges that any disclosure of non-opinion work product necessarily discloses “by inference attorney mental processes.” When non-opinion work product must be turned over to your opponent, (b)(3) essentially exempts your attorney’s opinion work product prepared in anticipation of trial from disclosure. 

While Texas provides slightly more protection of documents deemed to be attorney opinion work product, it is still prudent to execute an NDA before sharing documents with a litigation funder.